[Section 18 heading substituted by section 11 of Act No. 53 of 2000]
| (1) | Misconduct refers to a breakdown in the employment relationship and an educator commits misconduct if he or she— |
| (a) | fails to comply with or contravenes this Act or any other statute, regulation or legal obligation relating to education and the employment relationship; |
| (b) | wilfully or negligently mismanages the finances of the State, a school or an adult learning centre; |
[Subsection (1)(b) substituted by section 58(3) of Act No. 16 of 2006]
| (c) | without permission possesses or wrongfully uses the property of the State, a school, an adult learning centre, another employee or a visitor; |
[Subsection (1)(c) substituted by section 58(3) of Act No. 16 of 2006]
| (d) | wilfully, intentionally or negligently damages or causes loss to the property of the State, a school, or an adult learning centre; |
[Subsection (1)(d) substituted by section 58(3) of Act No. 16 of 2006]
| (e) | in the course of duty endangers the lives of himself or herself or others by disregarding set safety rules or regulations; |
| (f) | unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic Education, an office of the State or a school or adult learning centre; |
[Subsection (1)(f) substituted by section 58(3) of Act No. 16 of 2006]
| (g) | misuses his or her position in the Department of Basic Education or a school or adult learning centre to promote or to prejudice the interests of any person; |
[Subsection (1)(g) substituted by section 58(3) of Act No. 16 of 2006]
| (h) | accepts any compensation in cash or otherwise from a member of the public or another employee for performing his or her duties without written approval from the employer; |
| (i) | fails to carry out a lawful order or routine instruction without just or reasonable cause; |
| (j) | absents himself or herself from work without a valid reason or permission; |
| (k) | unfairly discriminates against other persons on the basis of race, gender, disability, sex, pregnancy, marital status, ethnic and social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, birth, family responsibility, HIV status, political opinion or other grounds prohibited by the Constitution; |
| (l) | performs poorly or inadequately for reasons other than incapacity; |
| (m) | without the written approval of the employer, performs work for compensation for another person or organisation either during or outside working hours; |
| (n) | without prior permission of the employer accepts or demands in respect of the carrying out of or the failure to carry out the educator’s duties, any commission, fee, pecuniary or other reward to which the educator is not entitled by virtue of the educator’s office, or fails to report to the employer the offer of any such commission, fee or reward; |
| (o) | without authorisation, sleeps on duty; |
| (p) | while on duty, is under the influence of an intoxicating, illegal, unauthorised or stupefying substance, including alcohol; |
| (q) | while on duty, conducts himself or herself in an improper, disgraceful or unacceptable manner; |
| (r) | assaults, or attempts to or threatens to assault, another employee or another person; |
| (s) | incites other personnel to unprocedural and unlawful conduct; |
| (t) | displays disrespect towards others in the workplace or demonstrates abusive or insolent behaviour; |
| (u) | intimidates or victimises fellow employees, learners or students; |
| (v) | prevents other employees from exercising their rights to freely associate with trade unions in terms of any labour legislation; |
| (w) | operates any money-lending scheme for employees for his or her own benefit during working hours or from the premises of the educational institution or office where he or she is employed; |
| (x) | carries or keeps firearms or other dangerous weapons on State premises, without the written authorisation of the employer; |
| (y) | refuses to obey security regulations; |
| (z) | gives false statements or evidence in the execution of his or her duties; |
| (aa) | falsifies records or any other documentation; |
| (bb) | participates in unprocedural, unprotected or unlawful industrial action; |
| (i) | follow a formal programme of counselling as contemplated in item 2(4) of Schedule 1; |
| (ii) | subject himself or herself to a medical examination as contemplated in item 3(3) of Schedule 1 and in accordance with section 7 of the Employment Equity Act, 1998 (Act No. 55 of 1998); or |
| (iii) | attend rehabilitation or follow a formal rehabilitation programme as contemplated in item 3(8) of Schedule 1; |
| (dd) | commits a common law or statutory offence; |
| (ee) | commits an act of dishonesty: or |
| (ff) | victimises an employee for, amongst others, his or her association with a trade union. |
| (2) | If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2. |
| (3) | If, after having followed the procedures contemplated in subsection (2), a finding is made that the educator committed misconduct as contemplated in subsection (1), the employer may, in accordance with the disciplinary code and procedures contained in Schedule 2, impose a sanction of— |
| (d) | a final written warning; |
| (e) | a fine not exceeding one month’s salary; |
| (f) | suspension without pay for a period not exceeding three months; |
| (h) | a combination of the sanctions referred to in paragraphs (a) to (f); or |
| (i) | dismissal, if the nature or extent of the misconduct warrants dismissal. |
| (4) | Any sanction contemplated in subsection (3)(e), (f) or (g) may be suspended for a specified period on conditions determined by the employer. |
| (5) | An educator maybe dismissed if he or she is found guilty of— |
| (a) | dishonesty, as contemplated in subsection (1)(ee); |
| (b) | victimizing an employee for, amongst others, his or her association with a trade union, as contemplated in subsection (1)(ff); |
| (c) | unfair discrimination, as contemplated in subsection (1)(k); |
| (d) | rape, as contemplated in subsection (1)(dd); |
| (e) | murder, as contemplated in subsection (1)(dd); |
| (f) | contravening section 10 of the South African Schools Act, 1996 (Act No. 84 of 1996), as contemplated in subsection (1)(dd). |
[Section 18 substituted by section 11 of Act No. 53 of 2000]
